Field of invention
It came to my attention recently 1 that someone has taken a vigilante approach to combating patent trolls. However, before considering whether this is a worthwhile pursuit, it is worth taking a few steps back.
A patent troll is not an easily defined entity, but in the majority of cases it is a person or company who seeks to acquire patents for the sole purpose of enforcing the patent for financial gain. The patent is used purely for starting legal proceedings against other companies and is not used commercially. Usually the patent is very limited in what it protects but the mere threat of holding a valid patent, rather than the actual content of the patent itself, is often enough to produce results. By targeting small enterprises, who baulk at high legal costs, the patent trolls are very often able to acquire out-of-court settlements far exceeding the value of the patent itself.
To put it crudely, a patent troll is not dissimilar to the school playground bully who demands lunch money from a small child, with the threat that their big brother will beat up the small child otherwise. Except the bully doesn’t really have a big brother; just a little sister in the nursery. The power of the con lies in the knowledge that the small child is extremely unlikely to risk a beating and call the bully’s bluff.
The patent troll is a relatively rare beast in Europe but is rife in America for a couple of reasons. Firstly, in the American judicial system both parties pay legal expenses when a dispute goes to court. In Europe however, under the so-called ‘English Rule’, the losing party pays the winning party’s legal fees. The bullying tactics are therefore more powerful in America where, no matter the outcome, both sides will need to invest in legal fees. Secondly, the amount of compensation awarded in America can be far higher than in Europe, with American judges able to award triple damages in certain situations.
However, with the introduction of the Unified Patent Court (UPC), questions are being asked about if patent trolls will migrate to Europe 2. The UPC will allow a single patent to be enforced across contracting European states using a centralised court system. While having some benefits, the UPC will also bring the power of invalidating a patent, or banning a product, in 25 European countries with a single court decision. It is feared that patent trolls will leverage this for their own gain.
Summary of invention (what’s going on?)
With this in mind, artist and engineer Alex Reben has proposed a solution to the above-mentioned problems. Although wholly focussed on the American patent system, it could yet be useful in Europe if fears of a UPC troll infestation are realised.
According to Alex’s invention, there is provided a method of mildly irritating patent trolls in which an algorithm attempts to anticipate the types of patent a patent troll would pursue.
How successful this will be is anyone’s guess. Mine is: “not very”.
The aim of Reben’s computer is to generate as many ideas as possible that might potentially be used by patent trolls. It does this by scanning and extracting sentences from patent applications published on the US patent office database to form new ‘inventive’ concepts.
So why would an automated ideas generator be of any use?
One of the criteria for obtaining a valid patent is that the inventive concept behind the patent must be new. In the context of patents, any information that is relevant to an invention is called prior art; if the exact inventive concept is not found in the prior art then it is, by definition, new. Publishing an idea therefore prevents anyone using this idea as the basis for a future patent application, since the idea is already known.
Reben’s strategy is to flood the internet with automated ideas, effectively clearing the market of weak or obvious inventive concepts to base a patent on. The logic of automating this process has parallels with the infinite monkey theorem; given enough time it is hoped that a coherent (and hopefully useful) combination will be created. Unfortunately, the results from Reben’s computer are as garbled as a simian interpretation of Macbeth. My personal favourite is an aquarium for displaying jellyfish which measures an interference amount over a full bandwidth. The benefits this provides to the jellyfish are unclear.
However, just one coherent idea out of the millions generated could be enough to prevent patent trolls from using that idea from making legal advances on a company, and surely that’s good news?
The problem is this will not stop patent trolls, just mildly irritate them. Trolls do not solely exist because a lack of prior art allows them to acquire patents without needing to invent very much. Trolls exist because once they have a patent they are allowed to hit anyone within reaching distance over the head with it until they surrender money. The patent is not used for its intended purpose, namely providing protection for an inventor when their idea is being actively used.
Action must therefore happen at a higher level for patent trolls to be effectively dealt with. As we have previously reported, recent court decisions and legislation in the US are more likely to cause a headache for trolls but are not likely to eradicate them.
The other point to consider is would Reben’s generated ideas be searched by a patent examiner? It is hard to envisage any examiner having the patience to search Reben’s 422 prior art volumes for anything useful. The image of needles in haystacks springs readily to mind.
Reben’s computer is arguably a better vehicle for debate than a troll deterrent. It poses interesting questions like: Could a computer ever conceive an original idea? Are any ideas really original? What type of ideas should be patented? If prior art can be produced by computer, could entire patent specifications? Can Reben design me a program that will create blog posts by combining sections of pre-existing blog posts? Now that would be something.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.